21 April 2022 Volume 15/22 with selected Decision Summaries for the week ending Friday, 15 April 2022.
Common vaccination related issues we deal with
Decisions of the Fair Work Commission
Other Fair Work Commission decisions of note
Fair Work Commission Addresses
We perform functions under the Fair Work Act. In performing our role, we may need to consider vaccination related issues. We do not have the power to deal with all vaccination disputes at work.
We have prepared summaries of some decisions, statements and recommendations made by Members of the Fair Work Commission. These will help you understand the common vaccination-related issues we have dealt with. These summaries are for guidance only. You should read the full cases using the link in the summaries.
See Vaccination related matters for more information.
The summaries of decisions contained in this Bulletin are not a substitute for the published reasons for the Commission's decisions nor are they to be used in any later consideration of the Commission's reasons.
Summaries of selected decisions signed and filed during the week ending Friday, 15 April 2022.
1 |
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – mandatory vaccination – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant worked as Risk and Compliance Manager for respondent – respondent is a school – Victorian Government introduced public health directions which prohibited respondent from allowing unvaccinated education workers from working onsite unless they had a valid exemption – in September and October 2021, applicant expressed hesitation about the COVID-19 vaccines in her communications with the respondent – at meetings on 12 October and 8 November 2021, applicant advised respondent that she intended to wait for the Novavax vaccine, and respondent told applicant at the October meeting that this would not meet the requirements of the public health directions and applicant would be placed on leave without pay from the date of the school's return to onsite learning, until 15 November – at the 8 November meeting, respondent told applicant that if she was still unvaccinated by 15 November, her employment would be terminated – applicant was told by letter dated 15 November that her employment was terminated with immediate effect – applicant said she successfully worked from home for 16 weeks during lockdown – Commission found those 16 weeks corresponded to period of general lockdown in Victoria when students and most staff were not onsite, which was atypical and not reflective of the conditions in which applicant's duties would ordinarily be undertaken – Commission found the applicant's role required her to attend the school for various duties – found applicant was not ready, willing and able to perform requirements of her role – found valid reason for dismissal related to capacity – Commission rejected applicant's objections to respondent's evidence (witness statements and file notes) under Evidence Act 1995 (Cth) – due to s.591 of the Fair Work Act, the Commission is not bound by the rules of evidence, though it generally applies them – Commission held respondent's witness statements were admissible and applicant had not produced any evidence of 'collusion' – held file notes were contemporaneous records of discussions and there was no reason to treat them as unreliable – in relation to applicant's submission that she was not given notice of termination under s.117 of the Fair Work Act, Commission found respondent was entitled under s.117 to dismiss applicant with immediate effect by making payment in lieu of notice of the amount she would have received for the hours she would have worked in her notice period – as applicant was on leave without pay at the time of her dismissal, she was not working any hours and was not entitled to any payment – Commission found dismissal not harsh, unjust or unreasonable on account of s.387 factors – application dismissed. | |||
Roy-Chowdhury v The Ivanhoe Girls' Grammar School | ||||
U2021/10483 |
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Young DP |
Melbourne |
12 April 2022 | ||
2 |
TERMINATION OF EMPLOYMENT – misconduct – sexual harassment – s.394 Fair Work Act 2009 – unfair dismissal application – applicant worked at respondent's Yandi mine site – applicant was dismissed after respondent conducted investigation into allegations of sexual harassment and unwanted physical contact – complainants worked for a contractor that provided services including cleaning at the mine site – during investigation, applicant was sent a notification detailing allegations made against him by the complainants – applicant then sent a show cause letter in August 2021 setting out that respondent had found that the allegations were substantiated and was considering terminating his employment – applicant was invited to respond and invited to attend a meeting to discuss the investigation outcomes – applicant chose not to attend meeting – Commission found applicant engaged in sexual harassment (in hugging complainant 1 without her consent, whispering a lewd statement to complainant 1, grabbing complainant 2's breast and saying a lewd statement to complainant 2) which amounted to serious misconduct – found that each instance of sexual harassment was separately a valid reason for his dismissal – Commission also accepted that the instances of sexual harassment were breaches of the respondent's Charter Values and Code of Conduct which applicant was bound to comply with under his contract of employment – those breaches were valid reasons for dismissal – Commission found dismissal was not harsh, unjust or unreasonable – application dismissed | |||
Dunlop v BHP Billiton WAIO P/L t/a BHP | ||||
U2021/7550 |
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Williams C |
Perth |
11 April 2022 | ||
3 |
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – mandatory vaccination – s.394 Fair Work Act 2009 – unfair dismissal application – applicant employed as casual retail worker at a KFC restaurant – applicant alleged dismissal on 22 November 2021 – on 7 October 2021 Victorian Acting Chief Health Officer issued COVID-19 Mandatory Vaccination (Workers) Directions for retail workers to have their first dose by 15 October and be fully vaccinated by 26 November 2021 – applicant did not provide evidence required by 15 October – respondent did not roster applicant for work again – on 22 November 2021 respondent contacted applicant regarding vaccination status and return to work – applicant asked for letter of termination – respondent sent applicant 'abandonment of employment' letter – on 30 November 2021 respondent sent applicant 'show cause' letter – on 30 December 2021 respondent sent applicant further 'abandonment of employment' letter – on 4 January 2022 respondent sent applicant letter terminating employment because of failure to provide evidence of COVID-19 vaccination as required – respondent alleged applicant's employment was terminated on 4 January 2022 – Commission satisfied that the 'abandonment of employment' letters were sent in error and caused stress and confusion – Commission concluded that applicant was not terminated on 22 November 2021 for abandonment of employment – satisfied that applicant's employment was terminated on 4 January 2022 because she could not meet the legal requirement for the job – satisfied there was a valid reason for dismissal – applicant was advised of the reason for the termination in the show cause letter sent on 30 November – applicant had an opportunity to respond prior to being terminated on 4 January 2022 – Commission found applicant was not unfairly dismissed – application dismissed. | |||
Tuhaka v Southern Restaurants (Vic) P/L | ||||
U2021/11146 |
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Bissett C |
Melbourne |
14 April 2022 | ||
4 |
CASE PROCEDURES – apprehension of bias – ss.365, 368 Fair Work Act 2009 – application for Commission Member to recuse himself – 9 applicants made general protections dismissal applications against respondent – applicants allege respondent contravened FW Act by dismissing applicants for reasons which include their decision not to be vaccinated against COVID-19 or disclose their vaccination status or exemption status to respondent – Commission conducted a single conciliation of all 9 matters – conciliation was unsuccessful and Commission told parties it proposed to issue certificate under s.368(3)(a) FW Act to effect that all reasonable attempts to resolve dispute (other than by arbitration) have been, or are likely to be, unsuccessful – after conciliation, Commission issued directions for parties to file material to determine 2 issues: first, whether Commission would issue a written 'opinion' as to the facts in the matters, as requested by the applicants' representative – second, whether Commission would issue a certificate under s.368(3)(b) which stated that after taking into account all materials, arbitration of the dispute under s.368, or a general protections court application, would not have a reasonable prospect of success, as requested by respondent – applicants' representative later replaced his request for an opinion with a request for a statement by the Commission of 'material facts' – after the conciliation and issuing of the directions, Commission Member disclosed to parties that he was a member of the Virgin Australia frequent flyer program and held a 'Club' membership issued by them (Disclosure) – applicants made application that Commission Member recuse himself from further dealing with the matters, including the 2 outstanding issues, due to apprehended bias (no actual bias was claimed) – Commission considered the 2 step process set out in Ebner – Commission held that the memberships referenced in the Disclosure 'do not disclose a predisposition of judgment, with nothing in the absence of a claim of actual bias to be drawn from them as to how the merits may be determined' – memberships did not amount to a pecuniary interest that will be affected by the outcome of the issues yet to be addressed by the Commission – noted that a Full Bench in Kennedy explicitly eschewed the assumption that because of a disclosure of airline memberships there should be automatic disqualification – Commission noted the limited role to be played by the Commission in the matters from this point onwards – Commission would not be determining the merits of the applicants' claims – merits could only be determined following an arbitration, if the parties consented to arbitrate, or if an application is made to a court – applicants have repeatedly stated to Commission and to respondent that they do not seek arbitration of their matters – issuing a s.368(3)(b) certificate would not stand in the way of court proceedings, whereas applicants could not commence court proceedings if Commission does not issue a s.368(3)(a) certificate [Martin v Norton Rose Fulbright Australia (No 11)] – recusal application refused | |||
Dolevski and Ors v Virgin Australia Airlines P/L | ||||
C2021/8930 and Ors |
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Wilson C |
Melbourne |
12 April 2022 | ||
5 |
CONDITIONS OF EMPLOYMENT – stand down – ss.524, 526 Fair Work Act 2009 – application to deal with a dispute involving stand down – applicant works as a forklift driver in a warehouse and lives in a local government area that was declared an area of concern during the COVID-19 pandemic – NSW Government amended its public health order so that authorised workers in area of concern must receive at least one dose of a COVID-19 vaccine in order to work outside the area of concern, unless they had a medical contraindication – respondent told applicant he was stood down on unpaid leave under s.524 of the FW Act – on 8 October, respondent notified applicant that the public health order had been updated such that unvaccinated employees could return to work and applicant returned to work on 11 October – applicant submitted that respondent was not able to stand him down under s.524 and sought payment for the period he was stood down – Commission noted that the pandemic may cause a stoppage that respondent has no control over, however this was not in itself conclusive of whether there has been a stoppage of work – Commission found respondent's business still in operation and there was no stoppage of work – as Commission had found work has not stopped, it was not necessary to consider if the stoppage was for a cause for which respondent could not be held responsible, or if respondent could not usefully employ its employees – the stand down was not authorised pursuant to s.524 – found that during the 3-week period when the applicant was stood down, respondent was unable to allow applicant to work on premises due to the public health order – applicant was given the option to request to use his accrued leave – respondent's decision to stand down the applicant was due to the extraordinary circumstances of the pandemic and the applicant's decision not to provide evidence of vaccination status – applicant was effectively unable to perform the inherent requirements of his role for the 3-week period – respondent enabled applicant to return to work on 11 October following amendment of the public health order – Commission concluded that while applicant was not stood down in accordance with s.524, considerations of fairness weighed against making the orders sought by the applicant – Commission declined to make orders sought | |||
Nidai v Autonexus P/L | ||||
C2021/6568 |
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Matheson C |
Sydney |
11 April 2022 | ||
White v J Harding & P.A Harding t/a Trend Constructions NQ | ||
TERMINATION OF EMPLOYMENT – remedy – ss.392, 394 Fair Work Act 2009 – applicant was a casual employee who ceased being offered work in January 2021 – respondent raised jurisdictional objection that applicant was not dismissed – Commission found the applicant was terminated at the respondent's initiative – acknowledged that the respondent had a downturn in its business but Commission did not accept that there was no work for the applicant to perform – no valid reason for dismissal – dismissal not related to applicant's conduct or capacity – Commission found that the applicant was unfairly dismissed – parties agreed that their relationship had irretrievably broken down and could not be re-established – Commission found that reinstatement would not be appropriate – Sprigg formula applied to calculate compensation – Commission noted that if application of the Sprigg formula 'yields an amount which appears either clearly excessive or clearly inadequate' then the Commission should reassess the assumptions made in reaching that amount [Moore Paragon Australia Ltd] – Commission found that the application of step 1 of the Sprigg formula (estimating the remuneration the employee would have received if they had not been dismissed) would yield an amount of nil because applicant started a new job on the same date he states his dismissal by the respondent took effect – found this was clearly inadequate where applicant has been unfairly dismissed – Commission reassessed compensation – Commission noted that the applicant earned remuneration from his new job during the period the Commission had estimated he would have remained in employment but for his dismissal – Commission decided not to deduct remuneration from applicant's new job from the compensation amount – found respondent treated applicant unfairly and placed him in a position where he was without income for 11 weeks prior to finding new employment – found that respondent sent applicant confusing and contradictory correspondence about his employment – in around January 2021, applicant had applied to the Fair Work Ombudsman (FWO) for outstanding entitlements – respondent paid amounts assessed by the FWO – Commission found that the backpay received by the applicant was money he was entitled to during his employment and this did not offset any compensation granted by the Commission – Commission found that but for the dismissal, applicant would likely have earned an amount of $4,256.00 – no deduction in relation to applicant's failure to mitigate loss as applicant was under no obligation to mitigate loss during the 11-week period when he was not offered work by respondent – Commission accepted that applicant took reasonable steps to mitigate the loss of his employment – no deduction for income likely to be earned during the period between the making of the compensation order and the actual compensation – Commission ordered that the respondent pay the applicant an amount of $4,256.00 taxed according to law, plus superannuation. | ||
U2021/4640 |
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Asbury DP |
Brisbane |
11 April 2022 |
D'Ambrosio v Fair Work Ombudsman | ||
GENERAL PROTECTIONS – jurisdiction – ss.372, 374 Fair Work Act 2009 – general protections application not involving dismissal – applicant alleged contraventions of workplace rights – respondent, the Fair Work Ombudsman (FWO), raised jurisdictional objection that applicant was not an employee or prospective employee, and any future working arrangement she had at the FWO was with a labour hire agency and therefore she is not entitled to make a claim under s.372 FW Act – however, FWO agreed to participate in a conference provided that a jurisdictional hearing is not held – at issue is whether application can proceed directly to conference under s.374 or whether jurisdictional issue first requires determination – distinguished Milford, which concerned an application under s.365 – Commission found no prior determination of jurisdiction was required in advance of conducting a conference – Commission found applicant met the pre-conditions to a valid application under s.372, having alleged a general protections contravention and being not entitled to apply under s.365, as she was not dismissed – Commission found application validly made, empowering the Commission to conduct conference – Commission found that a pre-determination of a jurisdictional question to establish facts not required to be established lacked utility – application re-listed for private conference under s.374(1) | ||
C2022/1645 |
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Anderson DP |
Adelaide |
12 April 2022 |
Catalano v Transilvania Constructions P/L | ||
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant asserted he was dismissed from employment as building supervisor in September 2021 – respondent raised jurisdictional objection that applicant was a subcontractor and not an employee, and therefore barred from making unfair dismissal claim – termination letter stated that applicant was dismissed for misconduct and refusal to sign documents requested by respondent's director – applicant provided contract dated 6 October 2010 stating 'The employer hereby employs the employee and the employee here by accepts employment upon the terms and conditions hereinafter set forth' – CFMMEU v Personnel Contracting considered – terms of contract stated that applicant was an employee – Commission found applicant was an employee – applicant therefore entitled to make claim alleging unfair dismissal – due to his poor health, applicant did not attend building sites to extent required by his role as supervisor in the months leading up to dismissal and he did not notify respondent of his inability to attend – Commission found applicant's failure to attend site and communicate this to respondent was valid reason for dismissal – Commission not satisfied that applicant falsified payslips or a letter of employment as was alleged by respondent – nothing before Commission to indicate applicant was obliged to sign documents the respondent requested to be signed – applicant not notified of the stated reason for dismissal prior to being dismissed, was not given an opportunity to respond, and was not warned regarding performance – Commission considered size of respondent business and absence of human resources expertise negatively impacted dismissal procedure – found on balance that dismissal was harsh and unreasonable – therefore dismissal was unfair – Commission considered reinstatement inappropriate – considered applicant's employment would have lasted a further 3 months – ordered payment of 3 months' salary less one month's salary for misconduct in not attending site without notice, taxed according to law – order issued to that effect. | ||
U2021/8991 |
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Williams C |
Perth |
14 April 2022 |
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